Groups Seek to Close Superfund Law Loophole

Environmental groups are fighting to close a loophole currently allowing mining companies and other polluting industries to skip out on costly cleanups by declaring bankruptcy.

The public interest law firm Earthjustice filed a lawsuit today representing groups in Illinois, New Mexico, Nevada, and Idaho working to keep their communities and natural resources safe from sites contaminated by mining and other polluting industries.

"If we are successful, it will not only save taxpayers billions, it will encourage companies to avoid costly cleanups altogether by adopting more responsible practices," said Earthjustice attorney Lisa Evans. "The absence of regulations makes it easy for irresponsible companies in certain polluting industries to walk away from contaminated sites. This lawsuit will fix that problem."

Today's lawsuit comes on the heels of an announcement that chemical manufacturer W.R. Grace will pay a $250 million fine reimbursing the federal government for cleanup of asbestos contamination in Libby, Montana. But even this record-setting fine is not likely to cover the entire cost of cleanup. Today's lawsuit would make sure companies like W.R. Grace set aside sufficient funds to pay for the environmental damage they create and encourage them to act more responsibly in the first place.

The lawsuit also comes as the U.S. Senate takes up the issue of abandoned mines in committee today. The House of Representatives approved a measure last fall requiring operators of gold, silver, and other hardrock mines to post a bond to cover future cleanup costs before receiving a permit to mine on public lands. The Senate is expected to introduce a companion bill this session.

"Whether mining reform succeeds in the Senate or in the courts, we're working to make sure industries practice an important lesson we all learned in kindergarten: you must be responsible and clean up after yourself and clean up after yourself," said John Robison, Public Lands Director of Idaho Conservation League. "Both phosphate and hardrock mines have contaminated Idaho streams with toxic mine waste and left taxpayers footing the bill. Properly bonding mining operations will help keep mine waste from polluting our streams and rivers."

The hardrock mining industry uses and unearths large quantities of harmful toxins such as cyanide, lead, arsenic, and mercury in the mining process and has polluted more than 40 percent of western watershed headwaters. Last month, the Environmental Protection Agency released federal pollution data showing the metal mining industry remains the nation's largest polluter, claiming all top five polluting facilities, and had the largest increase (47 million pounds) of any industry in toxic releases and disposal.

In 2004, the EPA reported that the 145 hardrock mining sites listed in EPA's superfund database had an estimated cleanup cost of $22.6 billion. Of that, EPA estimated that approximately $13.8 billion (61 percent) could not be paid for by the polluter. A large portion of this burden will likely fall to taxpayers.

One of those Superfund sites is the Molycorp/Chevron Mining molybdenum mine near Questa, New Mexico. The Taos-based organization Amigos Bravos has long called for Molycorp to take responsibility for the toxins it released during the mine's 40-year history, contaminating the Red River and nearby groundwater aquifers. In 2002, after much of the damage was already done, the company agreed to set aside $152 million for cleanup. But total cleanup costs could reach $400 million and observers wonder if the scale of destruction would have been less if Molycorp knew at the outset it would be held responsible.

"If companies aren't on the line to clean up after themselves, there's no incentive for them to improve their waste management practices," said Brian Shields, executive director of Amigos Bravos. "We hope this legal action will encourage mine operators to act more responsibly."

In Nevada, 27 mining companies had declared bankruptcy as of July 2000, creating some of the country's highest potential taxpayer liability.

"We're still grappling with the legacy of bankruptcies from the 1990s," said Dan Randolph, executive director of Great Basin Resource Watch. "Given the frantic pace of mining today, if we had another rash of bankruptcies, the cleanup costs would be massive, not to mention the scale of environmental devastation."

Environmental damage is not limited to mining. In Illinois, communities face potential water contamination from industrial waste generated by coal-fired power plants that is dumped in surface coal mines.

"Peabody Coal plans to dump 60 million tons of coal combustion waste in a coal mine near farms and homes," said Kathy Andria, Waste & Recycling chair of the Illinois chapter of Sierra Club. "It is critical that the money be available for cleanup if this toxic waste pollutes our water. Current coal mining bonds are inadequate to pay for cleanup."

BACKGROUND

Although many industries that handle hazardous materials are subject to bonding requirements under federal hazardous waste laws, numerous industries such as hardrock mining, electric utilities, metal finishers, solvent and battery recyclers and wood treatment facilities are not. These industries fall through the gap between two of the country's most important hazardous waste cleanup laws: the Superfund law and the Resource Conservation and Recovery Act (RCRA). When the Superfund law was passed in 1980, lawmakers gave EPA five years to address this discrepancy. More than 20 years later, EPA still has not acted. Today's legal action asks that they perform this long overdue task.

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